What is the Right to Remain Silent?

Plenty of people have heard of the right to remain silent in the context of American criminal law. Despite it being common knowledge, however, not everyone understands it, or what its implications are. So what exactly is the right to remain silent, and what happens if someone violates that right?

Defining the Right to Remain Silent

Technically speaking, there is no “right to remain silent” in the United States Constitution, or at least those words do not appear in its text. Instead, the right to remain silent is a colloquial term for the Fifth Amendment right against self-incrimination. This specifically gives people the right to refuse questioning from law enforcement, or to refuse to give testimony, whenever doing so might incriminate them. In addition, anyone who invokes the right to remain silent cannot legally have that held against them when it comes to determining their guilt or innocence.

When Does the Right to Remain Silent Apply?

The right to remain silent is specifically a right against interrogation or questioning in the context of criminal cases. More specifically, it applies in cases where the person being questioned is suspected of having committed a crime, and where they otherwise would not have a choice about being questioned. Thus, if you are not in police custody and are not giving sworn testimony, the Fifth Amendment is irrelevant, because you have the right to simply walk away instead of putting up with questioning. If you are in custody, they can question you only up until you invoke your Fifth Amendment right against self-incrimination, unless you voluntarily waive that right.

When Does the Right to Remain Silent Not Apply?

Most notably, it does not apply outside of the context of criminal cases. So, for example, if you are being sued for violating a business contract, you cannot typically invoke your Fifth Amendment rights. If you do try to invoke your right to remain silent outside of a criminal context, the court and the judge have the right to hold that against you, unlike in criminal court.

In addition, your right to remain silent does not typically apply in cases where you are not in danger of being criminally charged. This typically applies in one of two cases: first, when you are not the one being charged with a crime, and second, when you have some form of immunity agreement with the prosecution. In the case of an immunity agreement, you must usually waive your Fifth Amendment right against self-incrimination before you are granted immunity.

What Happens if My Right to Remain Silent is Violated?

Typically, the court responds to violations of the Fifth Amendment by excluding any testimony that was given as a result of that violation. This means that giving a confession or a sworn deposition in a criminal case is not necessarily the end of the world for you. However, you should consult with an attorney first to understand what options you may have available to you.

If you or someone you know has been arrested for a criminal offense, you will need legal counsel to help you preserve your rights and work to get the best possible outcome for your matter. A New York criminal defense lawyer, who is experienced in handling criminal cases of all sorts, can advise you of your legal rights and will fight for your best interests in court. If you or your loved one has been arrested, contact the Suffolk County criminal defense attorneys at McGuire, Peláez and Bennett at (631) 348-1702.